Tendayi Masesa and 5 Others v Kaymo Fabrics

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/734/13
HELD AT HARARE ON 21st NOVEMBER, 2013
CASE NO. LC/H/742/12
AND 3rd JANUARY, 2014
JUDGMENT NO. LC/H/734/13
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/734/13

HELD AT HARARE ON 21st NOVEMBER, 2013   CASE NO. LC/H/742/12

AND 3rd JANUARY, 2014

In the matter between:-

TENDAYI MASESA AND 5 OTHERS				Appellants

And

KAYMO FABRICS							Respondent

Before the Honourable G. Mhuri, Judge

For Appellants: J. Mawopa (Organising Secretary CWUZ)

For Respondent: Z. Makorie (Legal Practitioner)

MHURI J.:

This is an appeal against an arbitral award.

Appellants’ ground of appeal was that the Arbitrator erred in concluding that the termination of the contract was lawful because the contracts were fixed term contracts that had expired.

The Arbitrator’s term of reference was to determine if the dismissal was unfair.

It is a fact that Appellants were in Respondent’s employ on fixed term contracts of 2 months and which were continuously renewed for periods ranging from 3 years to 14 years.

In September 2011 Respondent notified the Appellants that their contracts will not be renewed and indeed at the expiration of the contracts, the contracts terminated.

The Arbitrator’s analysis and findings were that

“a fixed term contract is a contract with a defined duration.  Once the contract has expired the employment relationship would have come to an end.

When the complainants’ contract expired end of September, 2011, the employment relationship ended.

It cannot be considered an unlawful termination.  Complainants cannot therefore be reinstated because they were on fixed term contracts that simply expired.”

This was a correct interpretation of the law in my view.

Section 12 of the Labour Act [Chapter 28:01] provides for the DURATION, PARTICULARS AND TERMINATION OF EMPLOYMENT CONTRACT.

In particular sub section 2(b) provides:-

“(2)	An employer shall, upon engagement of an employee, inform the employee in writing of the following particulars –

…

The period of time, if limited, for which the employee is engaged.”

This subsection therefore provides for fixed term contracts.

Subsection (3) provides for permanent term contracts.

“A contract of employment that does not specify its duration or date of termination other than a contract for casual work or seasonal work or for performance of some specific service, shall be deemed to be a contract without limit of time.

provided

that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement … exceeds a total of six weeks in any four consecutive months.”

Section 12B provides for Dismissal.

In particular Subsection (3) (b) provides:-

“An employee is deemed to have been unfairly dismissed-

If, on termination of an employment contract of fixed duration, the employee –

had a legitimate expectation of being re- engaged and

(ii)	another person was engaged instead of the employee.”

Whilst the Act provides for fixed term contracts it does not put a limit to the number of times these contracts can be renewed.  Unlike in Section 12(3), the proviso therein, there is no deeming provision that an employee whose fixed term contract has been continuously renewed exceeding a certain number of times, he/she becomes an employee on a contract of employment without limit of time.

In this regard therefore Appellants cannot claim to have been on contracts without limit of time.

In order to be covered under Section 12B (3) (b) Appellants had to prove that they had legitimate expectation of being reengaged and that someone else was engaged in their stead.  The Arbitrator found that the Appellants had no legitimate expectation as they failed to prove that someone was engaged in their stead.

I find no fault with the Arbitrator’s finding.  Whilst, by virtue of the fact that for periods ranging up to 14 years Appellants’ 2 months contracts were being continuously renewed, this could have created in the Appellants’ minds legitimate expectation, the Appellants did not prove that someone else was employed in their stead. See:-

UZ-UCSF COLLABORATIVE RESEARCH PROGRAMME IN WOMEN’S HEALTH V SHAMUYARIRA 2010 (1) ZLR 127 (S) at page 131 A-C.

It is trite law that a party who alleges certain facts the onus lies on him to prove and avail evidence to that effect

See:-	BOOK V DAVIDSON 1988 (1) ZLR 365 (S)

Respondent’s submission that Appellants enjoyed all the benefits that are payable to employees on contracts without limit of time, such as leave days, NASSA etc was not challenged by Appellants.  Further, despite the fact that the contracts were contracts of a fixed duration, which Appellants were aware of, it was not disputed that Respondent gave Appellants notice that the contracts will not be renewed.

I find that Respondent did not casualise labour as Appellants would like me to believe.  It is to be accepted that each case has to be dealt with on its own merits.

It is also not correct that Respondent targeted members of the Workers Committee.  I do not believe Respondent’s submission that there was no Workers Committee at the time.  Evidence on record shows that a Workers Committee was established and Respondent through a letter dated the 30th June, 2011 addressed to the Human Resources Manager, was made aware of its establishment by the Commercial Workers Union Zimbabwe Regional Secretary.

Be that as it may, out of the 6 members of the Workers Committee only 3 had their contracts not extended.  Out of the 6 Appellants 3 were not members of the Workers Committee.  This is common cause.  The argument that Respondent targeted only members of the Workers Committee therefore does not stand.

Overally I find that the Arbitrator did not err in her findings.

Accordingly the appeal cannot be allowed.

It is therefore ordered that the appeal be and is hereby dismissed.

CWUZ–Appellants’ Legal Practitioners

Coghlan Welsh and Guest–Respondent’s Legal Practitioners